Immigrant detainers can be a liability to counties

By Scott Forsyth
The Daily Record Newswire

Normally the decision of a federal magistrate does not make waves among sheriffs, but Magistrate Janice Stewart of Portland, Oregon, is the exception. Ten weeks ago she ruled a county just outside Portland committed an illegal seizure when it detained Maria Miranda-Olivares following a request from the United States Immigration and Customs Enforcement, Miranda-Olivares v. Clackamas Cnty., 3:12-CV-02317 (D.Or. 2014).

The request came in the form of a detainer, which noted ICE had initiated an investigation to determine if Miranda-Olivares was subject to removal. The magistrate held the detainer by itself did not authorize the holding of Miranda-Olivares, absent probable cause or a warrant. She sent the case to trial, to determine Miranda-Olivares’ damages.

The sheriffs in nine Oregon counties immediately announced they would no longer hold people in jail based solely on an ICE detainer. A law professor told The New York Times the decision “could be a game-changer. It opens potential liability for counties all over the country for following ICE’s requests.”

The professor may be overstating the significance of the magistrate’s ruling. The magistrate relied on a recent decision out of the Third Circuit Court of Appeals, which held a municipality may be liable in a civil rights action for blindly complying with a detainer, Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014).

The facts of the two cases are similar. In Miranda-Olivares, the police arrested the plaintiff for violating an order of protection. When her sister tried to post bail, the jail informed her it would not release the plaintiff because ICE had issued a detainer on her. She languished in jail for 15 days until she pled guilty to one of the charges. She then sued the county.

In Galarza, the police rounded up four construction workers, including Ernesto Galarza, and charged them with conspiracy to sell drugs. A surety company posted bail for Galarza, but the Lehigh County jail refused to release him. ICE had sent it a detainer.

Galarza protested he was an U.S. citizen, but the jail would not look at his driver’s license or his Social Security card. He waited four days and then was released, after ICE lifted the detainer. A jury acquitted him of the charge. He sued the county and the arresting officers.

The language of the detainers was almost identical. They notified the jails of an investigation into the immigration status of the suspects, referred to the notice as a “request” to hold, and cited as authority 8 C.F.R. § 287.7. They reminded the jails the regulation “require(s)” the recipient to “detain the alien for a period not to exceed 48 hours.” The detainers were not accompanied by a warrant, an affidavit of probable cause or a removal order.

The counties argued they were not liable because the regulation and the language of the detainer obligated them to hold the plaintiffs. The courts countered that they were not so obligated, the detainers were permissive.

The courts noted the title and the text of the regulation refer several times to “request” and “advise.” Only in the line about the time period does the word “shall” appear.

The courts resolved any ambiguity among the words by construing the regulation to leave to the municipality the decision whether to hold a person who is the subject of a detainer. If the municipality decides to do so, it cannot hold the person more than 48 hours. And in making that decision the municipality “must meet the clearly defined” “standards of the Fourth Amendment,” namely the seizure must “be objectively reasonable in light of the facts and circumstances.”

In support of their interpretation of the regulation, the courts cited the statute authorizing detainers, ICE policy statements, and comments made by other courts on the use of detainers.

Last but not least, the courts pointed out the counties’ interpretation would cause the regulation to violate the Tenth Amendment. The federal government cannot “commandeer the legislative processes (and agencies) of the States by directly compelling them to enact and enforce a federal regulatory program.” An attempt to do so is “beyond the inherent limitations on federal power within our dual system,” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 283 (1981).

By reading the regulation as authorizing only permissive requests, the courts avoided this potential constitutional problem.

The court in Galarza remanded the case for further proceedings. The court in Miranda-Olivares found the detention of the plaintiff to be unreasonable under the circumstances. The county did not have probable cause to detain her based solely on a “box (being) checked on (a) ICE detainer.”

In addition to the nine counties in Oregon, the District of Columbia, New York City and Chicago have adopted policies limiting their response to detainers. The municipalities will not hold the subject of a detainer unless he has been convicted of a serious crime or is charged with a serious crime.

I wonder what the policy of the Monroe County Sheriff is on detainers. He should require a basis for holding the subject of a detainer that is consistent with the Fourth Amendment. If he does not, he will be following the sheriff of Clackamas County, at taxpayer expense.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or